Office of Lawyer Regulation v. Michael W. Starkweather

2020 WI 83
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP236-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michael W. Starkweather, Attorney at
Law:
Office of Lawyer Regulation,
Complainant,
v.
Michael W. Starkweather,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST STARKWEATHER
OPINION FILED: October 30, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 83
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP236-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michael W. Starkweather,
Attorney at Law:
Office of Lawyer Regulation,
FILED
Complainant, OCT 30, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Michael W. Starkweather,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This is a reciprocal discipline matter.
On February 5, 2020, the Office of Lawyer Regulation (OLR) filed
a complaint and motion pursuant to Supreme Court Rule (SCR)
22.22,1 asking this court to suspend Attorney Michael W.
1 SCR 22.22 provides:
(1) An attorney on whom public discipline for
misconduct or a license suspension for medical
incapacity has been imposed by another jurisdiction
shall promptly notify the director of the matter.
Failure to furnish the notice within 20 days of the
No. 2020AP236-D
effective date of the order or judgment of the other
jurisdiction constitutes misconduct.
(2) Upon the receipt of a certified copy of a
judgment or order of another jurisdiction imposing
discipline for misconduct or a license suspension for
medical incapacity of an attorney admitted to the
practice of law or engaged in the practice of law in
this state, the director may file a complaint in the
supreme court containing all of the following:
(a) A certified copy of the judgment or order
from the other jurisdiction.
(b) A motion requesting an order directing the
attorney to inform the supreme court in writing within
20 days of any claim of the attorney predicated on the
grounds set forth in sub.(3) that the imposition of
the identical discipline or license suspension by the
supreme court would be unwarranted and the factual
basis for the claim.
(3) The supreme court shall impose the identical
discipline or license suspension unless one or more of
the following is present:
(a) The procedure in the other jurisdiction was
so lacking in notice of opportunity to be heard as to
constitute a deprivation of due process.
(b) There was such an infirmity of proof
establishing the misconduct or medical incapacity that
the supreme court could not accept as final the
conclusion in respect to the misconduct or medical
incapacity,
(c) The misconduct justifies substantially
different discipline in this state.
(4) Except as provided in sub.(3), a final
adjudication in another jurisdiction that an attorney
has engaged in misconduct or has a medical incapacity
shall be conclusive evidence of the attorney's
misconduct or medical incapacity for purposes of a
proceeding under this rule.
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No. 2020AP236-D
Starkweather's license to practice law in Wisconsin for a period
of 36 months, as discipline reciprocal to that imposed by the
United States Patent and Trademark Office (USPTO). Upon review,
we agree that it is appropriate to suspend Attorney
Starkweather's law license for a period of 36 months. Although
the OLR's complaint did not address this subject, we also follow
our practice of ordering Attorney Starkweather to comply with
the terms and conditions of the USPTO disciplinary order,
including a two-year period of probation. We do not impose
costs.
¶2 Attorney Starkweather was admitted to practice law in
Wisconsin in 1988. He was registered as a patent attorney by
the USPTO in 1990. The most recent address furnished by
Attorney Starkweather to the State Bar of Wisconsin is in Tampa,
Florida.
¶3 Attorney Starkweather's Wisconsin license was
suspended effective October 31, 2019 for failure to pay bar dues
(5) The supreme court may refer a complaint filed
under sub. (2) to a referee for a hearing and a report
and recommendation pursuant to SCR 22.16. At the
hearing, the burden is on the party seeking the
imposition of discipline or license suspension
different from that imposed in the other jurisdiction
to demonstrate that the imposition of identical
discipline or license suspension by the supreme court
is unwarranted.
(6) If the discipline or license suspension
imposed in the other jurisdiction has been stayed, any
reciprocal discipline or license suspension imposed by
the supreme court shall be held in abeyance until the
stay expires.
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No. 2020AP236-D
and for failure to comply with trust account certification
requirements. His Wisconsin license remains administratively
suspended at the present time. Attorney Starkweather was also
publicly reprimanded in 2012 for appearing in federal bankruptcy
court in Utah without being admitted to practice in the state or
federal courts of Utah. Public Reprimand of Michael W.
Starkweather, No. 2012-6 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002474.html).
¶4 According to the documents attached to the OLR's
complaint, on October 17, 2019, the USPTO issued an order
suspending Attorney Starkweather's ability to practice before
the USPTO for 36 months as a result of his failure to provide
competent representation in a reasonably prompt, diligent,
honest manner to the inventors he took on as clients. More
specifically, the USPTO found Attorney Starkweather violated 37
C.F.R. §§ 11.101 (competency); 11.102(a) (failing to abide by a
client's decisions concerning the representation objectives);
11.103 (diligence); 11.104(a)(1) and (b) (failing to explain a
matter to the extent reasonably necessary to enable the client
to make an informed decision); 11.104(a)(2) (failing to
reasonably consult with a client about the means by which the
client's objectives are to be accomplished); 11.104(a)(3)
(failing to keep client reasonably informed about the status of
a matter); 11.107(a) (failing to obtain informed consent in
writing from clients where the representation involved a
concurrent conflict of interest); 11.303(a)(1), (3) and (d)
(knowingly making false statements of fact to a tribunal);
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No. 2020AP236-D
11.504(c) (permitting an entity which recommended, employed, or
paid the respondent-lawyer to direct or regulate the respondent-
lawyer's professional judgment); 11.804(c) and (d) (engaging in
conduct involving dishonesty, fraud, deceit or
misrepresentation); and 11.804(d) (engaging in conduct that is
prejudicial to the administration of justice). See In the
Matter of Michael W. Starkweather, Proc. No. D2018-44 (USPTO
Oct. 17, 2019).
¶5 The USPTO order also states that Attorney
Starkweather's future reinstatement by the USPTO, if any, shall
be conditioned on, among other things, attaining a certain score
on the Multistate Professional Responsibility Exam (MPRE) and
completing 12 hours of continuing legal education courses on
certain subjects. Id. In addition, the USPTO order states
that, if reinstated, Attorney Starkweather must serve a two-year
probationary period with a number of specified conditions. Id.
¶6 On February 5, 2020, the OLR filed a complaint against
Attorney Starkweather alleging that, by virtue of the suspension
imposed by the USPTO on October 17, 2019, Attorney Starkweather
is subject to reciprocal discipline in Wisconsin pursuant to
SCR 22.22. The OLR's complaint also alleged that by failing to
notify the OLR of his suspension by the USPTO within 20 days of
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No. 2020AP236-D
the effective date of its imposition, Attorney Starkweather
violated SCR 22.22(1).2
¶7 On July 7, 2020, this court directed Attorney
Starkweather to inform the court in writing within 20 days of
any claim by him, predicated upon the grounds set forth in
SCR 22.22(3), that the imposition of discipline reciprocal to
that imposed by the USPTO would be unwarranted, and of the
factual basis for any such claim. Attorney Starkweather did not
file a response.
¶8 Under our rules and precedent, this court shall impose
the identical discipline imposed by the USPTO unless one or more
of the enumerated exceptions in SCR 22.22(3) is shown. See
SCR 22.22(3); see also In re Disciplinary Proceedings Against
Schwedler, 2017 WI 54, ¶5, 375 Wis. 2d 426, 895 N.W.2d 409
(imposing reciprocal discipline based on the USPTO's
disciplinary action). There is no indication that any of those
exceptions apply in this case. In addition, although certain
elements of the USPTO disciplinary order are generally not
imposed in Wisconsin disciplinary proceedings (e.g., imposition
We note that on February 21, 2020, about two weeks after
2
the OLR filed its complaint in this matter, Attorney
Starkweather filed a petition to resign his membership in the
State Bar of Wisconsin pursuant to SCR 10.03(7)(a). We ordered
this petition be held in abeyance in light of the instant
disciplinary proceeding. See SCR 10.03(7)(a) (providing that,
before accepting a voluntary resignation of membership, this
court "shall request from the office of lawyer regulation
information concerning whether the attorney is the subject of
any pending . . . proceedings"). We will address this pending
petition in a separate order.
6
No. 2020AP236-D
of a probationary term, the requirement of a particular score on
the MPRE), this court's practice in like situations is to order
the respondent-lawyer to comply with the terms and conditions
imposed by the disciplinary order in the other jurisdiction in
order to make the discipline identical under SCR 22.22. See,
e.g., In re Disciplinary Proceedings Against Hooker, 2010 WI 13,
¶11, 322 Wis. 2d 552, 779 N.W.2d 419; In re Disciplinary
Proceedings Against Moree, 2004 WI 118, 275 Wis. 2d 279, 684
N.W.2d 667. We do so here.
¶9 We do not impose the costs of this proceeding on
Attorney Starkweather. See In re Disciplinary Proceedings
Against Hooker, 2012 WI 100, ¶26, 343 Wis. 2d 397, 816
N.W.2d 310 (noting that in reciprocal discipline cases where a
referee is not appointed, costs are generally not imposed as
there are no referee expenses and the proceedings are less
involved).
¶10 IT IS ORDERED that the license of Michael W.
Starkweather to practice law in Wisconsin is suspended for a
period of 36 months, effective the date of this order.
¶11 IT IS FURTHER ORDERED that Michael W. Starkweather
shall comply with the provisions of SCR 22.26 concerning the
duties of a person whose license to practice law in Wisconsin
has been suspended.
¶12 IT IS FURTHER ORDERED that compliance with all
conditions of this order, and compliance with all conditions of
the disciplinary order imposed on Michael W. Starkweather by the
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No. 2020AP236-D
United States Patent and Trademark Office, are required for
reinstatement. See SCR 22.29(4)(c).
¶13 IT IS FURTHER ORDERED that the administrative
suspension of Michael W. Starkweather's license to practice law
in Wisconsin, due to his failure to pay bar dues and failure to
comply with trust account certification requirements, will
remain in effect until each reason for the administrative
suspension has been rectified, pursuant to SCR 22.28(1).
¶14 IT IS FURTHER ORDERED that Michael W. Starkweather's
pending petition to resign his license to practice law in
Wisconsin shall be addressed in a separate order.
8